Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Ct. No. BP103928 Mitchell L. Beckloff, Judge.
Ferruzzo & Ferruzzo and David N. Shaver for Objector and Appellant.
Pray, Price, Williams & Picking and David M. Price for Petitioner and Respondent.
TURNER, P. J.
I INTRODUCTION
Mark Maciel (the objector), David Maciel (David) and James Maciel, Sr. (James, Sr.) were the sons of the decedent, Joseph D. Maciel. The objector appeals after the probate court cancelled a quitclaim deed. The quitclaim deed transferred title in the decedent’s home to the objector. The probate court transferred the home to the decedent’s personal representatives. The objector also appeals from the denial of his new trial motion. We affirm.
Because all the parties share a common surname, we generally use the first names for purposes of clarity and not out of any disrespect.
II. BACKGROUND
A. The Pleadings
1. Overview
Born on December 19, 1919, the decedent died on October 26, 2005. The decedent had a total of 13 children, 9 of whom survived him. One child, Elias D. Maciel, Sr. died during the course of the probate proceedings. On or around October 31, 2001, the decedent transferred title to his home at 11719 East Angell Street in Norwalk via a quitclaim deed to objector. At the time of the transfer, the decedent was approximately 83 years old and had owned the home for 50 years. The upshot of the petition is that the decedent transferred title to the home without any consideration. The issue in this case is the validity of the quitclaim deed.
2. David’s first amended petition
On September 14, 2007, David filed a first amended petition which alleged the following. On or about October 31, 2001, the decedent orally stated he held the real property in trust on behalf of his eight surviving children. In reliance upon the “oral trust, ” the decedent transferred title of the home to the objector as trustee. The decedent allegedly stated the objector would hold the home in trust. The home was to be held in trust for all the objector’s siblings. The home was to be sold and the proceeds to be divided evenly upon decedent’s death. David’s first amended petition further alleged that, at the time the deed was executed, the objector was in a confidential or a fiduciary relationship with the decedent. This was because: of the parent child relationship; “[the objector]... had been entrusted by [the decedent] to assist him in handling his financial affairs”; and the objector was an ordained minister. According to the first amended petition, “[David] and the [decedent] were assured repeatedly by [the objector] that he would comply with the [decedent’s] wishes with regard to dividing the proceeds of the said real property upon the [decedent’s] death.”
The objector refused to list the home for sale and to share or account for rental proceeds received from the property. David requested: enforcement of the “oral trust”; removal of the objector as trustee; imposition of a constructive trust on the grounds of fraud, mistake or invalid acknowledgement; an order transferring the home to the eight siblings in equal shares; possession of the home; an accounting; and damages.
In response, the objector asserted, among other things, any alleged oral trust violated the statute of frauds. The objector also denied ever stating he held the home as a trustee. According to the objector, David’s first amended petition conflicted with sworn statements made to law enforcement agencies that decedent’s signature had been forged on the quitclaim deed. The quitclaim deed was properly notarized, valid and operative.
On December 11, 2007, James Sr. filed a separate pro se petition seeking to cancel the quitclaim deed on the grounds of: forgery; defective acknowledgement; a violation of a 1981 marital settlement agreement between his parents; and fraud by mistake or misrepresentation. James Sr. alleged, if the quitclaim deed was signed by the decedent, it was accomplished by fraud or undue influence. James Sr. requested: cancellation of the quitclaim deed; removal of the objector as trustee; imposition of a constructive trust; a declaration the home was held in trust; an accounting; damages; and an order requiring the home’s sale and distribution of proceeds to the decedent’s surviving children. The objector opposed James Sr.’s petition on the grounds it was: procedurally defective; barred by applicable statutes of limitation or the statute of frauds; and subject to the ownership presumption of Evidence Code section 662.
All further statutory references are to the Evidence Code unless otherwise indicated.
On September 5, 2008, the objector timely filed his separate trial brief in which he claimed he was entitled to a presumption of ownership under section 662. The trial brief also argued that David and James Sr. had the burden of proving by clear and convincing evidence that the objector was not entitled to full beneficial title. On September 24, 2008, (one day before the scheduled trial date), David filed his separate trial statement. Page 8 of David’s trial statement indicates that the contested issue in the case was whether, “The quitclaim deed was obtained on the basis of undue influence and fraud....” David relied on Estate of Stephens (2002) 28 Cal.4th 665, 667 and Sparks v. Mendoza (1948) 83 Cal.App.2d 511, 514 as pertinent authorities on the burden of proof in an undue influence case.
B. The Trial
1. Overview
The matter was tried over the course of several months beginning September 25, 2008 and concluding on June 8, 2009. At least, seven witnesses testified. We separately set forth their testimony.
2. Notary Public Martha Ayala
Ms. Ayala testified that she knew the decedent for 33 years. They lived on the same block with one house between their two homes. Ms. Ayala prepared the quitclaim deed. One day in late October 2001, the decedent asked her if she could prepare a quitclaim deed for his house. The decedent wanted to transfer title to the home to objector. The objector was one of the decedent’s sons. After the decedent asked to have the quitclaim deed prepared, Ms. Ayala discussed the effect of the instrument with him. She testified, “I told him... if he was sure he was to give the house to [the objector] because he was going to lose title in the house.” The decedent told Ms. Ayala he understood. Ms. Ayala prepared the quitclaim deed as requested by the decedent. While preparing the quitclaim deed, she spoke by telephone with the objector to find out why title to the home would be vested in him. The objector said he should take title to the property as his sole and separate property.
Both the objector and Ms. Ayala attend the 10, 000-member Calvary Chapel in Downey. The objector was a pastor at the church. Ms. Ayala has attended the church since 1989. The church has an English and a Spanish speaking ministry. Ms. Ayala was involved in the Spanish speaking ministry, which has about 450 or 500 members. The objector was not involved in the Spanish speaking ministry.
After Ms. Ayala prepared the quitclaim deed, she took it to the decedent to be signed on November 3, 2001. The following transpired according to Ms. Ayala: “I refreshed him... once he signed the document the house would belong to [the objector]. He was going to lose title, and I wanted to be assured that that’s what he wants to do. [¶]... He said that’s exactly what he wants to do.” The decedent did not say anything to her about the objector having an obligation to share the home or any of its proceeds with anyone else. The decedent executed the quitclaim deed and signed her notary journal. Ms. Ayala did not obtain the decedent’s fingerprint because she forgot her ink pad. She did not always obtain fingerprints when notarizing documents. The quitclaim deed was prepared on October 31 but not signed until November 3, 2001. Ms. Ayala acknowledged it was a mistake not the change the date on the quitclaim deed to November 3, 2001. She also mistakenly indicated in the acknowledgment that the deed was executed on October 31, 2002.
Ms. Ayala told the decedent she was going to make arrangements to have the quitclaim deed recorded, which she did. Ms. Ayala did not receive any compensation for preparing the quitclaim deed. She prepared the quitclaim deed as a favor to decedent. Ms. Ayala provided notary transactions for the objector after this transaction. The transactions occurred long after the quitclaim deed was executed.
3. James Sr.
James Sr., a convicted felon, testified the decedent’s handwriting had been forged on the quitclaim deed. James Sr. was in prison from 1986 until July 2008. While incarcerated, James Sr. received a letter from the decedent. James Sr. did not think the signature on the quitclaim deed looked like the decedent’s handwriting. James Sr. thought Ms. Ayala had not testified truthfully about the circumstances relating to the execution of the all-purpose acknowledgement or the quitclaim deed.
The decedent visited James Sr. in the prison. Around 1999 or 2000, during one of the visits, the decedent was visiting with James Sr.’s son, James Maciel, Jr. (James Jr.). The decedent asked if James Sr. had any outstanding debts. The decedent stated he wanted to keep a promise to his children’s mother that the home would be divided among the living children. The decedent said his health was deteriorating to the point that he could lose the family home because of medical bills. The decedent wanted to put the home in someone else’s name. James Sr. stated he did not know when he would be released from prison. The objector was a chaplain. Thus, James Sr. believed the objector would do what was right in connection with the home. James Sr. suggested the decedent place the home in the objector’s name.
In 2003, the decedent visited James Sr. in prison. During the meeting, the decedent was complaining that the objector had rented the home to some people. In 2004 or 2005, the decedent complained during a visit about having problems with the objector. The decedent told James Sr. some construction was being performed on the home and the objector was renting to inmates. According to the decedent, the objector had changed. The change in relationship was such the decedent and the objector could not even talk to one another. The decedent said something about a legal action. The decedent never told James Sr. about the quitclaim deed. James Sr. wanted to borrow money from the decedent in 2003. James Sr. was advised to talk to the objector. This was because the objector was managing the decedent’s finances. James Sr. subsequently received a check from the objector for the amount of money that James Sr. had asked to borrow from the decedent.
James Sr. believed the home was quitclaimed to the objector with an understanding the property still would be owned by the decedent. According to James Sr., the understanding was that the objector would hold the home pursuant to an oral trust for the benefit of the decedent’s living children. The objector was expected to ultimately divide any sale or rental proceeds from the home for the benefit of the decedent’s surviving children. James Sr. did not know whether the objector or the decedent paid taxes or a mortgage payment on the home after the quitclaim deed was executed. The objector did not account for any rents he collected from the home. Since 2003 or 2004, the objector did what he wanted with the home.
4. James Maciel, Jr.
James Jr., the decedent’s grandson, worked with the objector at the church as a football coach. James Jr. also worked with the objector in the church’s prison ministry. James Jr. was not involved every week but he participated in holiday events and spoke to youth authority wards. While James Jr. was working in the prison ministries, Ms. Ayala was on the same team. James Jr. testified the objector and Ms. Ayala were friends and worked together in the prison ministry. At one point in 2003 or 2004, James Jr. wanted to secure a loan. The objector told James Jr. to speak to Ms. Ayala. Ms. Ayala stated she knew a “loan shark” but did not recommend using the unidentified individual to secure a loan.
The decedent, James Sr. and James Jr. lived in the home in the 1980’s. After 1988, James Jr. paid rent for living in the residence. At that point, the objector wanted James Jr. removed from the home. James Jr. asked the decedent for money. James Jr. was told to ask the objector for funds. This was because the objector handled all of the decedent’s finances. Over the years, the decedent had discussed how he wanted the home to be divided among all his children.
In a 2006 telephone conversation, the decedent told James Jr. that the objector had been entrusted with the home. David listened in on the telephone call. The decedent wanted the objector to do one of three things with the home: sell it and divide the proceeds amongst the children; collect and divide rent from the property; or offer it to one of the children to buy it at a low price. The objector also mentioned but decided against a fourth option of giving the home to his church or a Catholic Church.
5. David
David testified that he overheard the aforementioned 2006 telephone conversation over a speakerphone. The objector threatened to sell the house for one dollar if the family members did not do what he wanted. David lived in the house in 1986 and 1992. Both times, the objector was collecting the rent. The decedent became ill in 1986 when two of his sons died. David and the decedent discussed who should own the home. The decedent suggested the home should be placed in David’s name. David did not want the property in his name because of some divorce issues. David suggested putting the property in the objector’s name. David made this suggestion because the objector was a “godly” man.
6. The objector
The objector testified that he too was a convicted felon. The objector had been an assistant pastor at his church for 25 years. The decedent attended the objector’s graduation from seminary. The decedent knew the objector was a minister. Prior to October 1, 2001, the objector had “a very good relationship” with the decedent. The objector visited the decedent weekly. The two had breakfast every Friday morning for years. The objector took the decedent on family vacations.
The objector assisted the decedent in some financial matters. As early as 1996, the objector placed an advertisement in a church circular to rent the decedent’s house. The decedent, who owned other property, had problems collecting rents from tenants. The objector helped the decedent collect the rents from the tenants. When the decedent had problems with renters, the objector “interjected” to collect the rents. The objector would then give the rents to the decedent. The objector denied ever asking David to leave the home. David never paid rent to the objector.
The objector met Ms. Ayala as early as 1996 or 1997. Prior to October 31, 2001, the objector knew Ms. Ayala had been attending the Spanish speaking ministry at his church. Ms. Ayala and her husband were involved in the Spanish speaking ministry, which had about 500 members. The objector did not work in the Spanish speaking ministry. The Ayalas worked as volunteers under the objector ‘s “indirect” supervision in his prison ministry. The objector had employed her as a notary at least twice prior to October 31, 2001. The objector also utilized her as a notary in 2003 and 2005.
In August 2000, the decedent brought his will to one of their breakfast meetings. The decedent only spoke once about what he wanted to do with the property. The discussion occurred early in October 2001 at one of their regular breakfast meetings at a restaurant. The objector testified as a result of their discussion at the breakfast meeting, “[H]e was going to sign over the properties, the Norwalk to me.” The decedent was pleased with the way the objector had lived. When the objector inquired about the siblings, the decedent said they had all got their share. The objector was told he could do anything he wanted with the home. The decedent did not receive anything of value in exchange for the quitclaim deed. The objector did not share any of the rental proceeds with the decedent after the transfer. The objector was instructed not to tell any of his siblings about the quitclaim deed. The decedent explained, “He did not want to be harassed or bothered about the property.”
After the quitclaim deed was executed, the objector made some improvements on the home. The objector added two bedrooms. The objector refinanced the home to fund the construction. The objector admitted speaking with James Jr. in a telephone conversation in 2006 about the home. James Jr. said that the objector was supposed to do certain things with the property. In the 2006 telephone conversation, the objector denied stating he was expected to do anything with the property. In fact, the objector said he was going to sell the home. Out of frustration, the objector said he would donate the home to the church. Further, James Jr. was told the family finances were not a matter for his concern.
7. Janee Belinda Martinez
Decedent’s daughter, Ms. Martinez, testified that between 1988 and 2001, she worked about 5 or 10 minutes walking distance from the decedent’s home. Mrs. Martinez visited the decedent daily. In 1988, the decedent told her he wanted to avoid probate with the house. Ms. Martinez described the decedent’s instructions: “He said he was going to trust the house to [the objector]. And that if anything was to happen when he passed on then [the objector] was to distribute the house, and that he did not want...the house in probate.” Over the years, the decedent would periodically bring up the subject of what he wanted done with house. The decedent frequently discussed the issue with family and friends over the years between 1988 and 2005. Ms. Martinez described the decedent’s reasons for the decision, “[H]e was considering having [the objector] trusting the house to him because he was a man of God.” The decedent also said that Mark could sell the house and divide the proceeds among all decedent’s children. The objector could sell the house to one of decedent’s children below market value. Or, the objector could rent the house and provide a monthly income to decedent’s children. Sometime in 2005, after the quitclaim deed was recorded, the decedent and Ms. Martinez visited James Sr. in prison. The decedent wanted to meet with James Sr. This was because the decedent wanted to take the house out of the objector’s name. Ms. Martinez testified: “[H]e started noticing a change in [the objector]. And I asked him what change, Dad[?] And he said, I don’t know, but I want to remove him as being executor, and I want him removed from the house. But I’m not sure which of the three sons I would put the house in.”
C. The Probate Court’s Ruling And Order After Trial
After David and James Sr. rested, the objector moved for judgment under Code of Civil Procedure section 631.8. On July 24, 2009, the probate court filed a minute order and issued a ruling on submitted matter. The minute order was resubmitted on November 16, 2009, for clarity due to pending trust and estate proceedings between the same parties. The probate court made the following findings. David and James Sr. failed to establish the quitclaim deed was forged. The quitclaim deed transferred ownership of the property to the objector notwithstanding any procedural errors in the execution and acknowledgement. In terms of the relationship between the objector and Ms. Ayala, the probate court ruled: he had an “ongoing relationship” with Ms. Ayala for some time; the two first met in 1996; she provided notary services for the objector on a number of occasions prior to 2001 when the quitclaim deed was executed; she was directly involved with him through his prison ministry from 2000; and she was untruthful about her relationship with him.
The probate court ruled: the decedent was 83 years old when he executed the quitclaim deed; the objector had a confidential relationship with the decedent, as early as October 2001; a confidential relationship is not confined to any association of parties; kinship does not, by itself, give rise to such a relationship; and the existence of the confidential relationship was established in part by the objector’s own testimony. The probate court further found in terms of the confidential relationship: the objector had a very good social relationship with decedent prior to October 2001; it consisted of frequent visits and a weekly breakfast for years; the decedent vacationed with the objector’s family and went on other outings; beginning in 1996, the objector became involved in decedent’s financial affairs; the objector helped the decedent find renters for the home by placing advertisements in church circulars; when tenants did not pay rent, the objector began collecting the moneys and gave the funds to the decedent; and other witnesses testified about the objector’s practices concerning rental payments. The probate court also found, “There was some discussion between the [d]ecedent and [the objector] about the [d]ecedent transferring the [p]roperty to [the objector] in October 2010 during a breakfast visit.” The will had been executed years before the quitclaim deed was prepared. The decedent knew the objector was a member of the clergy. The decedent knew the objector worked at the church. The objector delivered a eulogy for the decedent’s wife when she died. The objector did not pay any consideration for the home.
The probate court also noted that the witnesses gave conflicting testimony about the decedent’s intent with respect to the home. The objector testified he was given the home because of how well he had done with his life. The objector testified he was told he could do whatever he wanted with the home. The objector did not tell any of his siblings about the quitclaim deed. According to the objector, he was directed not to mention the quitclaim deed. This was because the decedent did not want to be harassed by family members. The objector added two additional bedrooms to the home after the quitclaim deed was executed. The objector paid the mortgage and taxes on the property and entered into leases with tenants. On October 24, 2005, the objector spoke to the decedent. This was two days before the decedent died. The objector wanted the decedent to sign an affidavit. The affidavit was to verify that the home had been transferred to the objector. The decedent was hospitalized the day before he died.
There was also testimony that James Sr. suggested the house be placed in the objector’s name. The decedent was fearful he would lose the home due to his outstanding medical bills. And James Sr. did not want the home transferred to him because he was imprisoned. David testified the decedent expressed another opinion as to who should receive the home. The decedent, under this version, wanted the home to belong to David.
The probate court ruled the section 662 general ownership presumption did not apply given the specific facts of this case. The probate court ruled the matter was governed by the legal standards set forth by our Supreme Court in Soberanesv, Soberanes (1893) 97 Cal. 140, 145-146 on undue influence. The probate court found the objector failed to rebut a presumption he had exercised undue influence in regard to the inter vivos transfer of the property without consideration. The probate court order stated: “[The objector] and Decedent had a confidential relationship. The Decedent was elderly (nearly 83 years old) when he signed the Quitclaim Deed. There is no evidence that the [d]ecedent was provided with any independent advice concerning the transfer. Additionally, any admonition from [Ms.] Ayala (assuming that there was an admonition) concerning the effects of the execution of a deed was not independent as [Ms.] Ayala had connections with the objector through the church. (Additionally, a reasonable inference can be drawn that [Ms.] Ayala was untruthful while testifying about the extent of her relationship with the objector in 2001 to create an impression of disinterestedness.) Moreover, there is no evidence that [Ms.] Ayala was competent to counsel the [d]ecedent about the transfer. The [d]ecedent did not receive any consideration for the transfer. The [d]ecedent benefitted the objector to the exclusion of all of his other children with no real explanation why the [d]ecedent would exclude all of his other children. [The objector] had discussed with the [d]ecedent his estate planning documents shortly before the transfer.”
The probate court further concluded: “The presumption that [the objector] exercised undue influence over the [d]ecedent may be rebutted by [the objector]. To do so, [the objector] must demonstrate that the ‘transaction was fair and free from undue influence or fraud’ by a preponderance of the evidence. [Citation.] He must show ‘that the gift was made freely and voluntarily and with full knowledge of the facts, and with perfect understanding of the effect of the transfer....’ (Soberanes v. Soberanes, supra, 97 Cal. at p. 145.) [¶] [The objector] has not rebutted the presumption of undue influence. The only explanation [the objector] gave for the transaction was that his father was pleased with what [the objector] had done with his life. There is no explanation for why the [d]ecedent would have excluded all of his children from any inheritance. While [the objector] explained that the [d]ecedent indicated that he had provided for his other children, there is no evidence that he had done so. [¶] Nothing presented suggests that the [d]ecedent had a full knowledge of the facts and an understanding about the transfer. Moreover, the court believes the testimony from many witnesses that the [d]ecedent remarked on numerous occasions that his children would share the [p]roperty after his death. The court also finds credible the testimony that the [d]ecedent expressed concern about losing the [p]roperty sometime prior to the transfer because of his medical debts and was actively looking for someone to entrust with the [p]roperty.”
On October 13, 2009, the objector moved for new trial or to set aside and vacate the probate court’s July 24, 2009 ruling. According to the objector, the undue influence issue was not properly raised by the petitions and only presented in David’s untimely trial statement. At a hearing on his motions on November 10, 2009, the objector argued he was surprised by the undue influence issue. David pointed out that the issue was raised in his first amended petition. Also, the issue was posited in James Sr.’s petition.
On November 16, 2009, the probate court entered an order cancelling the quitclaim deed and directing the return of the home to the decedent’s estate. The trial court also entered an order denying the objector’s new trial motion. In denying the objector’s new trial motion, the probate court stated: “The court finds that the issue of undue influence and the relevant burdens and presumptions was squarely before this court. Mark Maciel’s Separate Trial Statement filed September 5, 2008 recognized that two petitions were before the court for trial. David Maciel’s petition filed September 14, 2007 alleged that Mark Maciel had a confidential or fiduciary relationship with his father, the Decedent, at paragraphs 6, 12, and 14. David Maciel’s petition also asserted that no consideration was paid to Mark Maciel related to the property transfer at paragraph 5. James Maciel, Sr.’s petition filed February 11, 2008 specifically alleged that undue influence was involved in the transfer. As to the burden shift and the presumption that an inter vivos parent-child transfer without consideration is the result of undue influence was specifically raised in David Maciel’s separate trial statement. At page 8 of that statement, David Maciel cites Estate of Stephens [, supra, ] 28 Cal.4th [at p.] 665 to support his legal theory of the burden shift and presumption.” The objector filed a timely notice of appeal from the order after trial and the order denying his new trial motion.
III. DISCUSSION
A. The Probate Court Applied The Correct Presumption.
The objector contends that the quitclaim deed entitled him to the statutory presumption of ownership which was not rebutted by clear and convincing evidence. (§662; In re Marriage of Brooks (2008) 169 Cal.App.4th 176, 184-185.) Section 662 provides: “The owner of the legal title to property is presumed to be the owner of the full beneficial title. This presumption may be rebutted only by clear and convincing proof.” Our Supreme Court articulated the undue influence standard for cases involving a gift to one child to the exclusion or others by an elderly or infirm parent in Soberanes v. Soberanes, supra, 97 Cal. at pages 145-146: “Transactions like the one under consideration are watched by courts of equity with the most scrutinizing jealousy, and are generally held to be presumptively void. They will be set aside upon the discovery of the least fraud, and every presumption ought to be indulged against them. The person who makes the donation and bestows the confidence is not bound to show that any imposition has been practiced upon him. It is sufficient for him to establish intimate and confidential relations with the donee. Some of the cases hold that undue influence is not to be inferred from the relation of parent and child, where the gift is from the parent to the child [citation]; but where the parent is of great age, or is enfeebled by disease, and conveys his entire estate to one child, to the exclusion of other children dependent upon his bounty, the burden is unquestionably upon the donee to show that the gift was made freely and voluntarily, and with full knowledge of all the facts, and with perfect understanding of the effect of the transfer. [Citations.]” (Id. at pp. 145-146; see also Boicelli v. Giannini (1924) 65 Cal.App. 601, 606 [courts of equity must “closely scan and scrutinize transactions of this character in order to ascertain whether any undue influence has been exerted over an aged parent to acquire his confidence, and whether the confidence so acquired has been abused or betrayed”].)
Recently, in Estate of Stephens, supra, 28 Cal.4th at page 677, our Supreme Court reiterated the well-established burden of proof standards where there is an allegation of undue influence: “In an undue influence case, ... ‘[w]here the relationship between the parties is that of parent and child and the parent relies on the child for advice in business matters, a gift inter vivos... which is without consideration and where the parent does not have independent advice, is presumed to be fraudulent and to have been made under undue influence.’ (Sparks v. Mendoza [, supra, ] 83 Cal.App.2d [at p.] 514.) The burden of proof then shifts to the child ‘to show that the transaction was free from fraud and undue influence, and in all particulars fair.’ (Sparks, supra, at p. 515.) Put differently, this presumption may be rebutted by ‘evidence that the act in question had its genesis in the mind of the parent and that he was not goaded to a completion by any act of such child.’ (Goldman v. Goldman (1953) 116 Cal.App.2d 227, 234.) The child’s burden of proof is by a preponderance of the evidence. (Estate of Gelonese (1974) 36 Cal.App.3d 854, 862-863.)”
Here, the probate court could correctly conclude the section 662 presumption did not apply in this case because there was evidence of undue influence and a confidential relationship, which altered the burden of proof. The probate court’s determination there was undue influence determination was supported by substantial evidence based on the following facts: the decedent was elderly; the parent child relationship; the regular breakfast meetings and vacations; the objector’s role as a pastor; and the objector was providing business advice and collecting unpaid rents. (Pleasants v. Hanson (1920) 48 Cal.App. 626, 630-631; Bacon v. Soule (1912) 19 Cal.App. 428, 434.) Also, the objector paid no consideration in exchange for the quitclaim deed and he received an undue benefit to the detriment of his siblings. Moreover, the decedent received no independent advice before deciding to enter into the transaction as the probate court found Ms. Ayala’s testimony unpersuasive in light of her relationship with the objector. (See Estate of Stephens, supra, 28 Cal.4th at p. 677; Soberanes v. Soberanes, supra, 97 Cal. at pp. 145-146; In re Estate of Young (2008) 160 Cal.App.4th 62, 79; see also Rice v. Clark (2002) 28 Cal.4th 89, 96-97; David v. Hermann (2005) 129 Cal.App.4th 672, 684.) Accordingly, there is no error in applying the undue influence rather than the section 662 presumption.
The objector also insists the probate court order be reversed on the merits. We disagree. Civil Code section 1575 provides: “Undue influence consists: [¶] 1. In the use, by one in whom a confidence is reposed by another, or who holds a real or apparent authority over him, of such confidence or authority for the purpose of obtaining an unfair advantage over him; [¶] 2. In taking an unfair advantage of another’s weakness of mind; or, [¶] 3. In taking a grossly oppressive and unfair advantage of another’s necessities or distress.” Undue influence is a species of constructive fraud. (O’Bryan v. Superior Court (1941) 18 Cal.2d 490, 496; O’Neil v. Spillane (1975) 45 Cal.App.3d 147, 158; Stewart v. Marvin (1956) 139 Cal.App.2d 769, 775.) Civil Code section 1573 defines constructive fraud as: “1. In any breach of duty which, without an actually fraudulent intent, gains an advantage to the person in fault, or any one claiming under him, by misleading another to his prejudice, or to the prejudice of any one claiming under him; or, [¶] 2. In any such act or omission as the law specially declares to be fraudulent, without respect to actual fraud.” Constructive fraud may be presumed when the parties have a relationship of trust or confidence or the circumstances under which the questionable transaction takes place. (Main v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1977) 67 Cal.App.3d 19, 33 overruled on a different point in Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 407.) Similarly, undue influence will be presumed or inferred where the parties to the transaction have a special confidential relationship which gives one party the power and means to take advantage of or exercise undue influence over the other. (Main v. Merrill Lynch, Pierce, Fenner & Smith, Inc., supra, 67 Cal.App.3d at p. 33; Moffat v. Lewis (1933) 123 Cal.App. 307, 313.) The probate court’s determination of undue influence is reviewed for substantial evidence. (Estate of Stephens, supra, 28 Cal.4th at p. 667; In re Estate of Young, supra, 160 Cal.App.4th at pp. 81-82.) For the reasons previously expressed, no error occurred when the probate court applied the undue influence presumption. (Solon v. Lichtenstein (1952) 39 Cal.2d 75, 81; Estate of Mann (1986) 184 Cal.App.3d 593, 606.)
B. The New Trial Motion Was Properly Denied.
The objector asserts the probate court erred in denying his new trial motion. The objector argues the sole basis of the probate court’s ruling was the presence of undue influence and he had no notice such an issue would be litigated. This contention has no merit. The issues were raised by David’s and James Sr.’s petitions filed on September 14, 2007, and February 11, 2008, respectively. The theories were raised again in David’s belatedly filed trial brief. Trial began on September 25, 2008 and was conducted over the course of eight months concluding on June 8, 2009. The objector had ample opportunity to address the undue influence issue. In any event, under liberal pleading rules, the probate court had broad discretion to allow amendments to the pleadings to conform to proof up to, during and after trial. (Saller v. Crown Cork & Seal Co., Inc. (2010) 187 Cal.App.4th 1220, 1237, fn. 12; Pellegrini v. Weiss (2008) 165 Cal.App.4th 515, 527.) No clear abuse of discretion has been established by the probate court’s orders denying a new trial under the circumstances of this case. (Trafton v. Youngblood (1968) 69 Cal.2d 17, 31; Singh v. Southland Stone, U.S.A., Inc. (2010) 186 Cal.App.4th 338, 355.)
IV. DISPOSITION
The probate orders under review are affirmed. Petitioner, David Maciel, is awarded his costs on appeal from objector, Mark Maciel.
We concur: ARMSTRONG, J., KRIEGLER, J.